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Carmel Lofts LLC/Parking Garage Maintance ,I • PARKING MANAGEMENT AGREEMENT This Parking Management Agreement (the "Agreement") is hereby entered into as of the 31st day of May, 2011, by and between Carmel Lofts LLC, an Indiana limited liability company ("CL"), and The City of Carmel, Indiana, a municipal corporation ("CITY"), as assignee of The City of Carmel Redevelopment Commission ("CRC"), and Keystone Realty Group LLC ("Parking Manager"). Section 1. Definitions. (a) Access Declaration shall mean that certain Access and Use Declaration executed by CL, as Declarant, dated March 19, 2009, and recorded in the Recorder's Office as Instrument Number 2009015884. (b) Affiliate shall mean: (i) any person or entity holding any direct or 'indirect equity, ownership, or beneficial interest in CL; (ii) any entity controlling, controlled by, or under common control with CL; or (iii) any person or entity that has any direct or indirect equity, ownership, or beneficial interest in the Building. (c) Allocable Costs shall mean expenses that properly are allocable to the Garage Declarant under the Stacking Declaration. (d) Annual Maintenance Plan shall mean the maintenance, repair, and replacement plan with respect to the Facilities for a particular calendar year, which plan shall: (i) contemplate maintenance, repair, and replacements sufficient to satisfy the obligations under Section 4; (ii) include, without limitation: (A) a janitorial program; (B) a regularly scheduled program of preventive maintenance and repair of the Garage Equipment and the Public Restrooms that complies with the requirements of the applicable Warranties; (C) annual power washing of the Parking Garage; and (D) a regularly scheduled program of adequate sealing, patching, re- . topping, and striping; and (iii) reflect the maintenance, repair, and replacement of the Facilities in conformity with the Maintenance Standard. (e) Bankruptcy Default shall mean: (i) the adjudication of Parking Manager as bankrupt or insolvent; (ii) the making by Parking Manager of a general assignment for the benefit of creditors; (iii) the appointment of a trustee or receiver for the property of Parking Manager, if such appointment is not vacated or set aside within 60 days from the date of such appointment; (iv) the filing of an involuntary petition in bankruptcy or for reorganization or arrangement against Parking Manager, if such involuntary petition is not vacated within 60 days after the filing thereof; (v) the filing by Parking Manager of a voluntary petition in bankruptcy or for reorganization or arrangement; (vi) the filing by Parking Manager of an answer in a legal proceeding admitting bankruptcy or insolvency; or (vii) Parking Manager's seeking or agreeing in a legal proceeding to reorganization, arrangement, or appointment of a trustee or receiver. (f) Building shall mean the mixed use building located on the Site. (g) Casualty Insurance shall mean casualty insurance with respect to the Facilities in an amount equal to the replacement cost thereof, the policies of which shall meet or exceed the requirements of Exhibit C; attached hereto; provided that, if, pursuant to this Agreement, CL and CITY agree to requirements in addition to, or different from, those set forth on Exhibit C, then, to the extent that such agreed requirements conflict with the requirements of Exhibit C, such agreed requirements shall control. (h) Claims shall mean claims, liabilities, damages, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees). (i) Commencement Date shall mean May 31, 2011. (j) Control Equipment shall mean any entrance and exit gates, ticket dispensers and/or readers, and other equipment used in the control of entrance into, exit from, and /or parking in, the Parking Garage. (k) Cure Period shall mean a period of 30 days after a party failing to perform or observe any term or condition of this Agreement to be performed or observed by it receives notice specifying the nature of the failure; provided that, if the failure is of such a nature that it cannot be remedied within 30 days, despite reasonably diligent efforts, then the 30-day period shall be extended as reasonably may be necessary for the defaulting party to remedy the failure, so long as the defaulting party: (i) commences to remedy the failure within the 30-day period; and (ii) diligently pursues such remedy to completion. (I) Employee Standards shall mean standards for employment that: (i) are: (A) comparable in scope and content to standards and/or policies for employment that are maintained by CITY; and (B) not invidiously discriminatory, either by their terms or in the manner in which they are applied; and (ii) comply with the Laws. (m) Ending Date shall mean the date on which this Agreement is terminated in accordance with its terms. (n) Event of Default shall mean: (i) a Bankruptcy Default; or (ii) any "Event of Default", as defined in Subsection 9(a). (o) Facilities shall mean the Parking Garage and the Public Restrooms, collectively. (p) Garage Declarant shall mean the "Garage Owner" and/or the "Garage Declarant" under the Stacking Declaration and/or Access Declaration. (q) Garage Equipment shall mean: (i) the HVAC Equipment; (ii) the Control Equipment; and (iii) the mechanical, electrical, plumbing, drainage, security and other equipment serving the Parking Garage. (r) HVAC Equipment shall mean the heating, and air conditioning systems, facilities, and equipment serving the Parking Garage. (s) Intended Use shall mean the use of: (i) the Parking Garage as a first-class parking garage; and (ii) the Public Restrooms as a public restroom; in each case, that serve the Building and the general public. (t) ISBA shall mean Indiana State Board of Accounts. (u) Laws shall mean all applicable laws, statutes, and/or ordinances, and any applicable governmental rules, regulations, guidelines, orders, and/or decrees. (v) Liability Insurance shall mean public liability insurance, with limits of liability initially not less than those set forth on Exhibit C, insuring against liability for property damage or loss, personal injury, and loss of life occurring in or on, or in connection with the use or operation of, the Facilities, the policies of which shall: (i) meet the requirements of Exhibit C; and (ii) name CL, CITY, and Parking Manager as insureds (or as additional insureds, as applicable); provided that, if, pursuant to this Agreement, CITY and CL agree to: (i) increased coverages; and/or (ii) requirements in addition to, or different from, those set forth on Exhibit C; then, to the extent that such agreed coverage increases and/or requirements conflict with the requirements of Exhibit C, such agreed coverage increases and/or requirements shall control. (w) Maintenance Standard shall mean the standard determining the condition in which the Facilities shall be kept and maintained, which standard: (i) shall be at least as high as the -2- standards for maintenance by CITY of public parking garages and surface parking lots or public restrooms, as the case may be; and (ii) at the election of CL or CITY, shall be such higher standards as would be applied by CL and/or the Affiliates for maintenance of parking garages serving a first-class mixed-use building. (x) Operations Standard shall mean a standard requiring the management and operation of the Facilities: (i) in a first-class manner, and otherwise consistent with the management and operation of similar parking garages or public restrooms, as the case may be, in the area; (ii) in the interest, and for the benefit, of the people of CITY; and (iii) in such a manner that: (A) promotes the interests and welfare of, and fosters favorable public relations for, the Building; and (B) promotes good relations in dealings with the public; provided that nothing in subsections (ii) and (iii) above shall materially and adversely affect: (A) the rights and benefits afforded CL hereunder; or(B) the ability of tenants and customers of the Building to park in the Garage. (y) Parking Garage shall mean: (i) two levels of underground parking facilities containing approximately 400 parking spaces; (ii) garage entrances and exits, ramps, and elevator lobbies; and (iii) related facilities; constructed on the Site, all as generally depicted and/or described on Exhibit B. (z) Parking Proposal shall mean a proposal submitted by CITY acceptable to CL requesting that: (i) a fee be charged to park in the Public Parking Spaces regardless of whether such fee applies on a daily basis or only in connection with special events occurring in the vicinity of the Site; (ii) a fee no longer be charged to park in the Public Parking Spaces; (iii) a limit be placed on the number of hours per day a customer may park in a Public Parking Space; or (iv) the removal of a limit on the number of hours per day a customer may park in a Public Parking Space; provided that in all events no such fees or limits shall be imposed on Public Parking Spaces used by Building tenants, customers or other members of the public visiting the retail shops and restaurants located within the Building or on any Reserved Parking Spaces. Any proposal for collecting fees or limiting hours of parking shall include a program for collecting any parking fees and/or enforcing any time limits (as applicable). CL shall be free to impose, remove, or amend restrictions on, time limits or any fees chargeable to users of Reserved Parking Spaces without the requirement of a Parking Proposal or consent from CITY or Parking Manager. (aa) Parking Spaces shall mean spaces in the Parking Garage for parking motor vehicles. (bb) Project Agreement shall mean that certain Project Agreement executed by and between CL and CRC dated January 5, 2009, as amended by that certain First Amendment to Project Agreement dated March 19, 2009. (cc) Public Parking Spaces shall mean all Parking Spaces other than Reserved Parking Spaces. (dd) Public Restrooms shall mean that certain structure separate from, but attached to, the Building and located on the Site that houses restrooms open for use by members of the public. (ee) Recorder's Office shall mean the Office of the Hamilton County, Indiana Recorder. (ff) Records shall mean books and records with respect to the maintenance, repair, replacement, management, and operation of the Parking Garage, including, without limitation: (i) copies of all contracts and agreements with respect thereto; and (ii) customary supporting records and receipts. (gg) Reimbursement Amount shall mean the sum of: (i) all reasonable costs and expenses associated with the maintenance and operation of the Facilities (including all costs and expenses for the Annual Maintenance Plan); (ii) all Allocable Costs that are allocable to the Garage Declarant under the Stacking Declaration; (iii) all reasonable, actual, out-of-pocket costs and -3- • expenses to implement any Parking Proposals (including, without limitation, any Garage Equipment reasonably required to implement such Parking Proposals and all sales taxes, and any other applicable taxes and expenses (including labor costs) reasonably necessary to implement and conduct such Parking Proposals; (iv) all other reasonable, actual, out-of-pocket costs and expenses related to, or associated with, the Services; in each case, to the extent not paid directly by CITY or CRC; (v) 50% of the Reserved Parking Spaces Administration Costs (provided that for avoidance of doubt, the parties agree that Reserved Parking Spaces Administration Costs shall not be included in any other category of cost set forth above); (vi) all costs and expenses for utility services unless billed and paid directly by CITY; (vii) an administrative fee equal to the greater of (1) five percent (5%) of the operating costs for the Garage (exclusive of taxes or insurance costs) or (2) $24,000 per calendar year; and (viii) all costs and expenses for real estate and personal property taxes for the Parking Garage and Garage Equipment and for the insurance required by Section 8. (hh) Reserved Parking Space shall mean a Parking Space that is reserved or set aside at any time as "Building Owner Spaces" in accordance with Section 4 of the Access Declaration. (ii) Reserved Parking Spaces Administration Costs shall mean all reasonable, actual, out-of-pocket costs and expenses incurred in connection with administering the Reserved Parking Spaces, including, without limitation, costs and expenses to: (i) obtain and install signage identifying the Reserved Parking Spaces; (ii) remove unauthorized users from any Reserved Parking Spaces; and/or(iii) enforce the Rules. (jj) Retained Parking Spaces shall mean Parking Spaces to which CL either retains or obtains fee ownership, all of which Parking Spaces shall be deemed to be Reserved Parking Spaces for the benefit of CL. (kk) Rules shall mean rules and regulations governing use of (including access to and from) the Parking Garage, which rules and regulations shall: (i) not be discriminatory, either by their terms or in the manner in which they are applied; (ii) be consistent with the terms and conditions of this Agreement; and (iii) be established (and modified or amended) by CL, subject to CITY's reasonable approval; provided that CITY's failure to object in writing to any proposed Rules within ten business days of CITY's receipt of written notice thereof shall be deemed approval of such Rule by CITY. (II) Services shall mean all services to be performed by Parking Manager pursuant to this Agreement with respect to the Facilities. (mm) Site shall mean that certain real estate described and/or depicted on Exhibit A. The Site is the"Project Site" under the Project Agreement. (nn) Space Interest shall mean an interest in a specific Parking Space, whether by fee ownership, easement, lease, sublease, license, or sublicense. The Space Interest is the "Space Interest" under the Access Declaration. (oo) Stacking Declaration shall mean that certain Declaration of Stacking Covenants and Easements (Garage) executed by CL, as Declarant, dated March 19, 2009, and recorded in the Recorder's Office as Instrument No. 2009015883. (pp) Term shall have the meaning ascribed to it in Section 2. (qq) Warranties shall mean all warranties obtained by CL from manufacturers, suppliers, and contractors with respect to: (i) the construction of the Parking Garage; and/or (ii) the acquisition and/or installation of the Garage Equipment. -4- • Section 2. Term. The "Term" of this Agreement shall: (a) commence on the Commencement Date; and (b) end on December 31, 2013; provided that the Term automatically shall be renewed for successive periods of one calendar year, unless a party shall delivery written notice of termination to the other parties hereto at least 30 days prior to the end of the Term, or unless otherwise terminated in accordance with the terms and conditions of this Agreement. Section 3. Reimbursements. CITY shall pay.to CL the Reimbursement Amount. On a monthly • basis (or such other periodic basis that all parties hereto agree is reasonable): (a) CL shall submit to CITY invoices for the Reimbursement Amount, together with documentation reasonably evidencing the same; and (b) CITY shall pay the Reimbursement Amount in accordance with Indiana law and standard payment procedures established by CITY but in no event more than 90 days after CITY's receipt of an invoice therefor(except for any portion thereof reasonably disputed in good faith). Section.4. General Obligations and Requirements. (a) General. CL shall cause Parking Manager to: (i) maintain, repair, and replace the Facilities in accordance with the terms and conditions of this Agreement (including, • without limitation, that Parking Manager shall conform to the Maintenance Standard); and (ii) manage and operate the Facilities for the Intended Use and in accordance with the Operations Standards. In connection with the discharge of the foregoing obligations, Parking Manager shall: (i) hire, discharge and supervise all employees and contractors • that CL deems to be necessary or appropriate; (ii) adopt and enforce the Rules; and (Hi) establish (and enforce) hours of operation for the Facilities, which hours shall be subject to the reasonable approval of CL and CITY; provided that in all events access to the Parking Garage shall be available to tenants of the Building at all times and such access shall not in and of itself be deemed to establish any parking spaces as Reserved Parking Spaces. •(b) Nondiscrimination. CL represents and warrants that it, Parking Manager, and all of their respective officers, employees, agents, contractors and subcontractors shall comply with all applicable Laws prohibiting discrimination against any employee, applicant for employment or other person in the provision of the Services with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status. (c) Utilities. Subject to the Stacking Declaration and CITY's reimbursement obligations under Section 3, Parking Manager shall pay all utility charges, costs, and expenses attributable to the Facilities that CITY does not pay directly to the applicable utility company; provided that all utility services shall be placed in-the name of CITY and billed directly to CITY. Upon request by CITY, CL shall work with CITY in good faith to develop and implement an energy savings plan with respect to the use and operation of the Facilities. (d) Compliance. In discharging its obligations under this Agreement, CL and Parking Manager shall comply with all: (i) Laws; (ii) requirements of all policies of insurance required by this Agreement, the Access Declaration, and/or the Stacking Declaration to be maintained (or actually maintained) by CL; and (Hi) applicable requirements of the ISBA identified to CL and Parking Manager in writing by CITY. (e) Employees. CL shall cause Parking Manager to develop and implement the Employee Standards. All employees and contractors hired by Parking Manager: (i) are (and shall be considered for all purposes to be) the employees and contractors of Parking Manager; and (ii) are not (and shall not be considered for any purpose to be) the employees or contractors of CITY. Accordingly, CITY shall have no obligations or I ' -5- liabilities with respect to such employees and contractors, who shall look exclusively to Parking Manager to discharge all obligations and duties as their employer or principal. CITY may require: (i) background checks for any or all employees or contractors hired by CL; (ii) random or periodic drug testing for all such employees and contractors; and (iii) CL to terminate any employee or contractor for cause (including, without limitation, for: (A) failing a drug test; or (B) a material violation of the Employee Standards); and any contracts for employment of such employees or contractors shall include consents to the implementation of such requirements (f) Annual Maintenance Plan. At CITY's request, CL shall prepare and submit, or cause Parking Manager to prepare and submit, to CITY on an annual basis an Annual Maintenance Plan. Section 5. Maintenance Obligations. At all times during the Term, CL shall cause Parking Manager to keep and maintain (and shall provide all maintenance, repairs, and replacements necessary to keep and maintain): (a) the Facilities in a structurally sound condition that provides support for the Building; and (b) the Facilities in: (i) good and safe order, condition, and repair; (ii) a clean and sightly condition; and (iii) compliance with all Laws. In connection with satisfying the obligations set forth in this Section, Parking Manager shall: (a) conform to the Maintenance Standard; and (b) satisfy the maintenance, repair, and replacement obligations of the Garage Declarant under the Access Declaration and/or the Stacking Declaration, to the extent that such obligations apply to any of the Facilities. Section 6. Records and Accounting. (a) Records. CL shall cause Parking Manager to: (i) prepare and keep a permanent, accurate, full, and complete set of the Records; and (ii) keep the Records for at least five years after the expiration of the calendar year to which they pertain; provided that, if the ISBA requires that the Records be kept for a period in excess of five years, then Parking Manager shall keep the Records for such longer period as is required by the ISBA; provided that CITY has provided CL and Parking Manager written notice of such longer period, at which time Parking Manager shall commence storing the Records for such extended period. All the Records shall be open to inspection by CITY and the ISBA at all reasonable times until the expiration of such five-year period (or such longer period as may be required by the ISBA as set forth above). If there is any dispute with respect to the information disclosed by the Records, then Parking Manager shall keep the Records with respect to the subject of such dispute until the dispute is settled. The obligation of Parking Manager to keep Records shall survive the Ending Date. (b) Audit. CITY at any time, and from time to time, during the term may request an audit of the Records by a qualified, independent certified public accountant selected by CITY.and reasonably acceptable to CL; provided that: (i) such audit shall be conducted during regular business hours at the office where CL or Parking Manager maintains the Records; (ii) CITY shall pay all costs of the audit, unless the audit discloses that CL or Parking Manager has, in any Record upon which payment owed to or by CITY is calculated: (A) understated, by 2A% or more, revenue obtained in connection with the Facilities; (B) overstated, by 5% or more, any line item of less than $20,000.00; or (C) overstated, by 2'A% or more, any line item of $20,000.00 or more; in which case CL and/or Parking Manager shall pay all costs of the audit; and (iii) the results of the audit shall be binding upon Parking Manager, CL, and CITY. The obligations of Parking Manager, CL, and CITY under this Subsection shall survive the Ending Date. If an audit is required by the ISBA, then, notwithstanding anything to the contrary set forth herein: (i) such audit shall be conducted in accordance with the requirements of the ISBA, including that the party performing such audit shall be determined by the ISBA; and (ii) CL and Parking Manager shall participate cooperatively in such audit, including that CL and Parking Manager promptly shall provide to the ISBA such information required by this Agreement to be in its possession or control as the ISBA may require; and CITY shall pay -6- the costs of the ISBA audit; provided that in no event shall CITY be responsible for CL's or Parking Manager's costs and expenses of performing their respective obligations under this Subsection. Section 7. Use of Spaces. The obligations with respect to the Parking Spaces shall be as set forth in this Section. (a) Reserved Parking Spaces. CL shall: (i) identify any Reserved Parking Spaces; and: (ii) cause the Parking Manager to: (A) remove unauthorized users therefrom; and (B) enforce the Rules. As.between CITY and CL, CL shall be responsible for payment of 50% of the Reserved Parking Spaces Administration Costs. (b) Public Parking Spaces. Parking Manager shall make the Public Parking Spaces available to members of the public; provided that: (i) the Public Parking Spaces shall: (A) be made available on a short-term basis; and (B) be made available on a first-come, first- served basis; and (ii) there shall be no charge to park in the Public Parking Spaces, except pursuant to a Parking Proposal. At the request of CITY, and at CITY's cost, Parking Manager shall install signage informing members of the public parking in the Public Parking Spaces: (i) of the Rules; (ii) of the terms and conditions of this Subsection; and (iii) that they may park in a particular Public Parking Space. Parking Manager shall be responsible for: (i) ensuring that the Public Parking Spaces are used in accordance with the terms and conditions of this Subsection; and (ii) enforcing the•Rules. Parking Manager may institute rules establishing time limits for Public Parking Spaces; provided CITY shall be entitled to approve such limits in advance. Any costs and expenses to implement such hourly limits shall be reimbursed by CITY in the manner set forth in Section 3. Any Parking Proposal shall be subject to CL's approval, which approval shall not be withheld unreasonably. If a Parking Proposal is approved by CL, then CITY shall prepare a plan to implement the Parking Proposal, which plan shall be subject to the reasonable approval of CL. An approved Parking Proposal, and the approved plan implementing such approved Parking Proposal, shall remain in effect until a subsequent Parking Proposal, together with a corresponding implementation plan, is approved. It is expressly agreed and acknowledged that nothing set forth in this Subsection or elsewhere in the Agreement shall grant CITY any authority or approval over fees or expenses charged by CL for the Reserved Parking Spaces or any other restrictions CL may implement, modify, or withdraw with respect thereto; provided that such restrictions • are consistent with the Access Declaration and the Stacking Declaration. (c) Access. At all times when parking is permitted in the Parking Garage, Parking • Manager shall cause there to: (i) remain open entrances into, and exits from, the Parking Garage that provide reasonably convenient access to the Parking Spaces in which parking is permitted at such time; and (ii) be adequate signage clearly identifying, and directing vehicles to, such open entrances and exits; provided that in all events access to the Parking Garage shall be available to tenants of the Building at all times and such • access shall not in and of itself be deemed to establish any parking spaces as Reserved Parking Spaces. Section 8. Insurance. (a) Policies. Parking Manager shall: (i) comply with the provisions of the applicable worker's compensation laws; and (ii) insure its liability thereunder. CL and/or Parking Manager shall further cause: (i) the Casualty Insurance and the Liability Insurance to be carried on the Facilities; and (ii) such other insurance as Parking Manager or CL reasonably deem prudent to be carried on the Facilities; the cost of which shall be reimbursed in accordance with Section 3. Any deductible with respect to the Casualty Insurance or the Liability Insurance shall be treated as an expense reimbursable under Section 3. -7- (b) Indemnification. (i) CL. CL shall indemnify and hold harmless CITY from and against any and all Claims arising from or connected with: (A) CL's maintenance, repair, replacement, operation, or use of the Facilities (including, without limitation, Claims related to injury to, or death of, persons or loss of, or damage to, property); (B) the negligence or willful misconduct of CL or any party acting by, under, through, or on behalf of CL; or (C) the breach by CL of any term or condition of this Agreement. The indemnification obligations of CL under this Subsection shall not extend to Claims to the extent they arise from, or are connected with, the gross negligence or willful misconduct of CITY. CITY. CITY shall indemnify and hold harmless CL and Parking Manager from and against any and all Claims arising from or connected with: (A) CITY's maintenance, repair, replacement, operation, or use of the Facilities (including, without limitation, Claims related to injury to, or death of, persons or loss of, or damage to, property); (B) the negligence or willful misconduct of CITY or any party acting by, under, through, or on behalf of CITY; or(C) the breach by CITY of any term or condition of this Agreement. The indemnification obligations of CITY under this Subsection shall not extend to Claims to the extent they arise from, or are connected with, the gross negligence or willful misconduct of CL or Parking Manager. (iii) Security. CITY expressly acknowledges that the Services do not include the rendition of service, supervision, or furnishing of personnel in connection with the personal safety and security of persons or property within and about the Facilities. Neither CL nor Parking Manager has knowledge or expertise as a guard or security service, and do employ personnel for that purpose, and neither CL's nor Parking Manager's employees undertake the obligation to guard or protect customers against the intentional acts of third parties. CL and/or Parking Manager may determine, at their or its reasonable discretion, to install precautionary warnings, security devices, or security services in and about the Facilities and, if approved by CITY in its sole discretion, such services and/or equipment shall be deemed reimbursable expenses for purposes of Section 3. CITY agrees to indemnify and hold harmless CL and Parking Manager from and against any Claims asserted by any . member of the public using the Parking Garage (other than the holder of a Reserved Parking Space) arising from CL's or Parking Manager's alleged failure to warn, guard, or protect persons in or about the Facilities from and against intentional threats, harm, or injury, except for such threats, harm, or injury intentionally committed by CL, Parking Manager, or their respective officers, employees, agents, or contractors. Notwithstanding the foregoing, CL and Parking Manager shall take reasonable measures to advise CITY of all security concerns and incidents in the Facilities of which CL or Parking Manager has actual knowledge so that CITY may make informed decisions with respect to security. -8- Section 9. Default and Remedies. (a) Events of Default. It shall be an "Event of Default" if any party fails to perform or observe any term or condition of this Agreement to be performed or observed by it: (i) with respect to the obligation to pay money, if such failure is not cured within ten days after receipt of written notice that such payment is due; and (ii) with respect to any other obligation, if such failure is not cured within the Cure Period. (b) Remedies. Whenever an Event of Default occurs, the non-defaulting party may take whatever actions at law or in equity are necessary or appropriate to: (i) collect any payments and other sums due under this Agreement; (U) protect the rights granted to the • non-defaulting party under this Agreement; (iii) enforce the performance or observance, or enjoin any breach, by the defaulting party of any term or condition of this Agreement (including, without limitation, the right to: (A) specifically enforce any such term or condition; or (B) seek an injunction with respect to any such breach; or (iv) cure, for the account of the defaulting party, any failure of the defaulting party to perform or observe a material term or condition of this Agreement to be performed or observed by it. If the non-defaulting party incurs any costs or expenses in connection with exercising its rights and remedies under, or enforcing, this Agreement, then the defaulting party shall reimburse the non-defaulting party for all such costs and expenses (including, without limitation, reasonable attorneys' fees and court costs), together with interest at the rate of 12% per annum. Notwithstanding the foregoing, this Agreement may not be terminated except by mutual agreement as provided in Subsection 9(c) or as provided in Subsection 9(d). (c) Termination. If this Agreement is mutually terminated for any reason, then CL and CITY shall execute an agreement in substantially the same form as this Agreement (or such other form as shall be acceptable to the parties hereto); provided that any successor Parking Manager shall be: (i) Keystone Realty Group, LLC; (ii) an Affiliate; or (Hi) such other entity as selected by CL, and reasonably approved by CITY, with experience in managing parking garages in the Indianapolis metropolitan area. (d) Appropriations. Notwithstanding any other provision contained in the Agreement, CITY immediately may terminate this Agreement, without penalty, at such time as sufficient monies are not appropriated by CITY to allow it to fully meet its financial obligations hereunder; provided that in such event CITY shall assign to CRC, and cause CRC to assume, this Agreement and all of the obligations hereunder, or cause CRC to execute a replacement agreement substantially similar in all material respects with CL and Parking Manager. (e) No Remedy Exclusive. No right or remedy herein conferred upon, or reserved to, a non-defaulting party is intended to be exclusive of any other available right or remedy, unless otherwise expressly stated; instead, each and every such right or remedy shall be: (i) cumulative; and (ii) in addition to every other right or remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission by a non-defaulting party to exercise any right or remedy upon any Event of Default shall impair any such right or remedy, or be construed to be a waiver thereof, and any such right or remedy may be exercised from time to time, and as often as may be deemed to be expedient. To entitle a non-defaulting party to exercise any right or remedy conferred upon, or reserved to, the non-defaulting party, it shall not be necessary for the non- defaulting party to give notice to the defaulting party, other than such notice as may be required by this Section or by the Laws. Section 10. Mechanic's Liens. No Party hereto shall suffer or cause the filing of any mechanic's lien against any part of the Facilities. If any such mechanic's lien is filed for work claimed to have been done for, or materials claimed to have been furnished to: (a) Parking Manager, CL, or CITY; or (b) any party -9- acting by, under, through, or on behalf of Parking Manager, CL, or CITY; then Parking Manager, CL, or CITY, respectively, shall: (a) cause such mechanic's lien to be discharged of record within 60 days after notice of the filing by bonding or as provided or required by law; or (b) provide evidence that the lien is being contested by proceedings adequate to prevent foreclosure of the lien, together with a satisfactory indemnity (in an amount equal to at least 150% of the claimed lien), to the other parties within 30 days after notice of the filing thereof; and in each instance indemnify and hold harmless the other parties from and against any and all Claims arising from or connected with any such mechanic's lien. All liens suffered or caused by CL or CITY shall attach only to the interest of CL or CITY, respectively. Nothing in this Agreement shall be deemed or construed: (a) to constitute consent to, or request of, any party for the performance of any work for, or the furnishing of any materials to, CL or CITY; or (b) as giving Parking Manager, CL, or CITY the right or authority to contract for, authorize, or permit the performance of any work, or the furnishing of any materials, that would permit the attaching of a mechanic's lien to the interest of the other party. Section 11. Assignment. CITY, CL, and Parking Manager shall not assign this Agreement without the prior written approval of the other parties; provided that: (a) without the prior written approval of CL, CITY may assign this Agreement to an agency or instrumentality of CITY; (b) without the prior written approval of CITY, CL may assign this Agreement to a successor owner of the Building; and (c) Parking Manager may assign this Agreement only to: (i) Keystone Realty Group, LLC; (ii) an Affiliate; or (iii) such other entity as selected by CL, and reasonably approved by CITY, with experience in managing parking garages in the Indianapolis metropolitan area. Notwithstanding any assignment permitted under this Section, CITY, CL, or Parking Manager, as the case may, shall remain liable to perform all of the terms and conditions to be performed by it under this Agreement, and the approval by the other party of any assignment shall not release CITY, CL, or Parking Manager, as the case may be, from such performance; provided that, in the case of any permitted assignment hereunder to an assignee that: (a) has full power and authority to accept an assignment of this Agreement and carry out the obligations of the assignor hereunder; and (b) expressly assumes all such obligations in writing; then the assignor shall be released from liability under this Agreement for all obligations to be performed after the date of such assignment and assumption. CITY represents to CL and Parking Manager that it is CITY's official position that all • contracts and agreements entered into by CRC are contracts or agreements of CITY, and, accordingly, no assignments of contracts or agreements from CRC to CITY are necessary. Section 12. Notice. Any notice required or permitted to be given by any party to this Agreement shall be in writing, and shall be deemed to have been given when: (a) hand-delivered to the other party; (b) sent by facsimile, with electronic confirmation of receipt; or(c) sent by national overnight delivery service, with confirmation of receipt, addressed as follows: to CL and/or Parking Manager at 47 S. Pennsylvania Street, 10th Floor, Indianapolis, Indiana 46204, Facsimile: 317-635-1100, Attn: Ersal Ozdemir; and to CITY at City Hall. 1 Civic Square, Carmel, Indiana 46032, Facsimile: 317-844-3498, Attn: Mayor, with a copy to: City Attorney, City of Carmel, City Hall, 1 Civic Square, Carmel, Indiana 46032, Facsimile: 317- 571-2484. Any party may change its address for notice from time to time by delivering notice to the other party as provided above. Section 13. Force Majeure. Notwithstanding anything to the contrary set forth herein, if any party is • delayed in, or prevented from, observing or performing any of its obligations under, or satisfying any term or condition of, this Agreement as a result of: (a) an act or omission of one of the other parties; or (b) any other cause that is not within the reasonable control of such party (including, without limitation, unusually inclement weather, the unusual unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions of public utility providers, but excluding a lack of financial resources); then: (a) such observation, performance, or satisfaction shall be excused for the period of days that such observation, performance, or satisfaction is delayed or prevented; and (b) the deadlines for observation, performance, and satisfaction, as applicable, shall be extended for the same period. Section 14. Authority. Each undersigned person executing this Agreement on behalf of CL, CITY, and Parking Manager represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary action of CL, CITY, and Parking Manager, respectively, to execute and deliver this Agreement; (b) he or she has full capacity, power, and authority to enter into and carry out this -10- Agreement; (c) the execution, delivery, and performance of this Agreement have been authorized by CL, CITY, and Parking Manager, respectively; and (d) this Agreement is the legal, valid, and binding obligation of CL, CITY, and Parking Manager, respectively, enforceable in accordance with its terms and conditions. Section 15. E-Verify. All terms defined in I.0 . § 22-5-1.7 et seq. are adopted and incorporated into this Section. Pursuant to I.C. § 22-5-1.7 et seq., Parking Manager shall enroll in and verify the work eligibility status of all of its newly-hired employees using the E-Verify program, if it has not already done so as of the date of this Agreement. Parking Manager is further required to execute an affidavit affirming that: (a) it is enrolled and is participating in the E-Verify program; and (b) does not knowingly employ any • unauthorized aliens. In support of the affidavit, Parking Manager shall provide CITY with documentation that it has enrolled and is participating in the E-Verify program. This Agreement shall not take effect until said affidavit is signed by Parking Manager and delivered to CITY's authorized representative. Should Parking Manager subcontract for the performance of any work under this Agreement, Parking Manager shall require any subcontractor(s) to certify by affidavit that: (a) the subcontractor does not knowingly employ or contract with any unauthorized aliens; and (b) has enrolled and is participating in the E-Verify program. Parking Manager shall maintain a copy of such certification during of the term of any subcontract. Parking Manager also shall deliver a copy of the certification to CITY within seven days of the effective date of the subcontract. If Parking Manager, or any subcontractor of Parking Manager, knowingly employs or contracts with any unauthorized aliens, or retains an employee or contract with a person that Parking Manager or subcontractor subsequently learns is an unauthorized alien, then Parking Manager shall terminate the employment of or contract with the unauthorized alien within 30 days (the "Cure Period"). Should Parking Manager or any subcontractor of Parking Manager fail to cure with the Cure Period, CITY shall have the right to terminate this Agreement without consequence. The E-Verify requirements of this Agreement shall not apply should the E-Verify program cease to exist. Section 16. Nondiscrimination. Parking Manager represents and warrants that it and all of its officers, employees, agents, contractors, and subcontractors shall comply with all laws of the United States, the State of Indiana, and CITY prohibiting discrimination against any employee, applicant for employment, or other person in the provision of any goods and services provided by this Agreement with respect to his or her hire, tenure, terms, conditions and privileges of employment, and any other matter related to his or her employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status, andlor Vietnam-era veteran status. • Section 17. Iran Certification. Pursuant to I.C. § 5-22-16.5, CL and Parking Manager shall certify that, in signing this document, they do not engage in investment activities within the Country of Iran. Section 18. Miscellaneous. Subject to Paragraph 11, this Agreement shall inure to the benefit of, and be binding upon, Parking Manager, CL, and CITY, and their respective successors and assigns. This Agreement may be modified only by a written agreement signed by both parties. This Agreement shall not be construed to create a contractual relationship with, give rights or benefits to, or create a cause of action in favor of, anyone other than the parties hereto. All indemnities set forth in this Agreement shall survive the expiration of the Term or the earlier termination of this Agreement. The invalidity, illegality, or unenforceability of any one or more of the terms and conditions of this Agreement shall not affect the validity, legality, or enforceability of the remaining terms and conditions hereof. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana. The paragraph headings shall not be considered in any way to affect the interpretation of this Agreement, and this Agreement shall not be construed against the drafting party, it being acknowledged and agreed that each party has reviewed and understands, and has had its counsel review, this Agreement. All Exhibits to this Agreement are attached hereto and incorporated herein by reference. This Agreement may be executed in separate counterparts, each of which when so executed shall be an original, but all of which together shall constitute but one and the same instrument. The parties agree to execute and record a • -11- memorandum of this Agreement with the Recorder of Hamilton County, Indiana, with the costs of recording to be paid by CL. [Signature page to follow.] -12- IN WITNESS WHEREOF, CL, CITY, and Parking Manager have executed this Agreement as of the date set forth above. CL: CARMEL LOFTS LL . By: Keystone Gr. By: da_ ,�L /�rrsa a 7d: ir, Me: IN WITNESS WHEREOF, CL, CITY, and Parking Manager have executed this Agreement as of the date set forth above. CL: CARMEL LOFTS LL By: Keystone Grro • LLC, _r/r BY: -/"_ A //� Ersal •zdemir, Member CITY: 11// THE CITY OF CARMEL, IN' £ A, by and through it :oard of •ublic Wor s an• Safety By: 1 ,/ CJa• es C. : .inard, Pr- 'ding officer By: Ls. • /— / ary 'nn Burk-,1Vlember . Al Attesting Lori Watson and Mary Ann Burke's '•n, Member ATTEST: signatures only. Did not witness Mayor signature. By: \/_ ..S G In i. E •/: Diana L. Cordray, IAM ! lerk-Treasurer PARKING MANAGER: KEYSTONE REALTY ROUPLLC By: Keystone Group LLC, !.: bl By: Vii . . . i oppf rsal izdemir, Member -13- INDEX TO EXHIBITS Exhibit A Depiction and/or Description of the Site Exhibit B Depiction and/or Description of the Parking Garage and the Reserved Parking Spaces Exhibit C Insurance Coverages INDS01 DEW 1315160v13 -14- EXHIBIT A Land situated in the County of Hamilton, State of Indiana, is described as follows: Being part of Simeon Hawkins, an addition to the City of Carmel, in Hamilton County, Indiana as per plat therefore recorded in Deed Record 30, Page 441 in the Office of the Recorder of Hamilton County, Indiana more particularly described as follows: BEGINNING at the Southeast Corner of Lot 4 in said Subdivision;Thence South 90 degrees 00 minutes 00 seconds West(assumed bearing)along the South lines of Lot 4, Lot 5,an alley, Lot 6,and Lot 7 a distance of 340.00 feet to the Southwest Corner of said Lot 7;Thence North 00 degrees 46 minutes 45 seconds East along the West lines of said Lot 7,an alley,Lot 9 and Lot 14 a distance of: 275.31 feet to the Northwest corner of said Lot 14; Thence South 89 degrees 50 minutes 51 seconds East along the North lines of said Lot 14, an alley, and Lot 13 a distance of 325.00 feet to the Northwest Corner of Instrument Number 1999-35513; Thence South 00 degrees 46 minutes 53 seconds West along the West line of said Instrument a distance of 137.22 feet to the Centerline of an alley Thence South 89 degrees 55 minutes 26 seconds East along said Centerline of an alley a distance of 15.00 feet to the East Line of said Subdivision;Thence South 00 degrees 46 minutes 53 seconds West along the East lines of an alley and aforesaid Lot 4 a distance of 137.20 feet to the PLACE OF BEGINNING. IMAOI IVOI INh4'EtIMEI U(11107700 t. 1 I. 1 , , _ 0 11 11 111! I I I ' 1 1 1 1 1 1 1 I ' 11 %." Ja O �`, g4 1 ' ..._ r _. L al cm iii D { ° .. . 3 f W 3 1 On Q 6 7 1 ° _ �I • I 1 eo JIIP nnI ' , p Q I I CI 1 p ' b F �Og i 11 I 11 _1 I %� 6 o b a b e o b o w 0 0 sL g5 V. 4 __ �11 Ili' ' I i iCT0. 5 ` '! i'I W! -hqa au } i� A h�lla ��I,. i{{I 1'��B' I. 1 58 0l ',�:� I�!II��D ' 5 �.N 1�` .F;d. lilt 7[ iflI i'�I 1 '{I 111 j UPI 43- r — p f 1 - I I I • Ili % 111. 11111. 111.1 ( 1 11 .1' 1 ( ( ( 1 ;1I I G I 000 ■ L. 1 ° ; ,- uo 3 aQ a a0 t1 i P ille .I j{i1 ; - B■ j i .. ._............._.._1 _.._. C.= 1 I U m I 1 .1'1 .! H 11 .111,1111 I I: 1111 : 7 ! ao - o, 0 om o�� o e irix la give zs 0, Ni ri 11 1 �.,� E ! 101' Ili, ! p '�G,W. 0 9Iii !Jill 1 lioi I. e8, �:n. ��i 1 I y51 i,os �i��lll�b S ��. �� 1� 7C 1 . 1 I I. �Q' Eli �� !I�i ili i ,5 RI 1 p 11 I� 11 _ tkkhs /C C ACC °® CERTIFICATE OF LIABILITY INSURANCE DATE THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Rani Hendrix NAME: Pillar Group Risk Management, Inc. lac°.NS.-earl: (317)853-3500 FAX No):(317)853-3501 301 Pennsylvania Parkway ADDRess:khendrix @pillargroup.com PRODUCER 00017915 Suite 100 _CUSIOMEaM - Indianapolis IN 46280 INSURER(S)AFFORDING COVERAGE NAIC# INSURED INSURERA:Cincinnati Insurance Company 10677 Carmel Lofts LLC INSURER B: Sophia Square LLC INSURER C: Carmel Lofts Garage, LLC INSURER O: 47 South Pennsylvania St. 10th Floor INSURERE: Indianapolis IN 46204 INSURER F: COVERAGES CERTIFICATE NUMBER:CL1261310171 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR I TYPE OF INSURANCE INSR SU BR POLICY NUMBER I POLICY I(POLICY D/Y YPY)I LIMITS GENERAL LIABIUTY EACH OCCURRENCE $ 1,000,000 DAMACrTDRENTED $ 500,000 X COMMERCIAL GENERAL LIABILITY PREMISES(Ea occurrence) A CLAIMS-MADE X OCCUR CPP1057350 6/11/2012 6/11/2013 MED EXP(Any one person) $ 10,000 PERSONALS ADM INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,000 X I POLICY ri gi [1 LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ (Ea accident) ANY AUTO BODILY INJURY(Per person) S ALL OWNED AUTOS BODILY INJURY(Per accident) $ SCHEDULED AUTOS PROPERTY DAMAGE $ HIRED AUTOS (Per accident NON-OWNED AUTOS $ UMBRELLA LIAB _ OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ _ DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION WC STATU- I OTH- AND EMPLOYERS'LIABILITY YIN TORYI MITE ER_ ANY PROPRIETOR/PARTNER/EXECUTIVE NIA E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory In NH) E .DISEASE-EA EMPLOYEE $ D EeSsCIePuON OOMO OPERATIONS below E.L.DISEASE-POLICY LIMIT $ DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES (Attach ACORD 101,Additional Remarks Schedule,If more space Is required) See Notes: Revised from 02/19/2013 CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Keystone Realty Group LLC ACCORDANCE WITH THE POLICY PROVISIONS. 47 South Pennsylvania St. 10th Floor AUTHORIZED REPRESENTATIVE Indianapolis, IN 46204 Daniel Touw/KLH ACORD 25(2009/09) ©1988-2009 ACORD CORPORATION. All rights reserved. INS025(200909) The ACORD name and logo are registered marks of ACORD COMMENTS/REMARKS Subject to the terms and conditions of the policy, Keystone Realty Group LLC and The City of Carmel Indiana are added as additional insureds on the General Liability but only if required by written contract and only with respects to liability arising out of the work performed by or on behalf of the named insured for the Certificate Holder. • OFREMARK COPYRIGHT 2000, AMS SERVICES INC. • s a vI`g x i t at a ) trt :�y a .' 'U . ? °r i �q � is r i x s a §, „ i{ F 4 ur R w k 5 7 5 x: .Ya G z ,:'u 5. + C t i3s rl yr ° e &e _ ir.c r N v a S3n gl aS,, ''y S, r c�.a r a 1 . .. : . Yh:: ., r.. .W9 g a Al 4_'F -1 aver^F`�s z, : ^1 '^ t,�A g,,,� z ° '�T 'i%' �'v ..a a ,-- .r R ' A',lb� i= l x Wr:a Iaz:,r>.f 5L.Ht 0., v v.0 N v?. _.. 4.,.. �� #: RESOLUTION NO. BPW-03-20-13-03 RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY ilt°`% ACKNOWLEDGING RECEIPT OF CONTRACT n Oat WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Cannel, Indiana ("City"), is authorized to enter into contracts; and WHEREAS, pursuant to Indiana Code 36-4-5-3, the City's mayor shall sign all contracts of the City; and WHEREAS, pursuant to his authority under Indiana law, the City's mayor, the Honorable James C. Brainard,has signed the City contract attached hereto as Exhibit A(the"Contract"); and WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works and Safety for it to be publicly acknowledged, filed in the Clerk-Treasurer's Office, and made available to the public for review. NOW, THEREFORE, BE IT RESOLVED by the City of Cannel Board of Public Works and Safety as follows: 1. The foregoing Recitals are incorporated herein by this reference. 2. The receipt of the Contract is hereby acknowledged. 3. The Contract shall be promptly filed in the office of the Clerk-Treasurer and thereafter made available to the public for review. SO RESOLVED this �0 day of , 2013. CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: (Zezerte Jame rainard, Presiding Officer Date. _ 3 - . b -ajIP ar ,• ary n Burke, Member ^�Date: // Lori S. Watson, M- '.er Date: <-3/020/r.3 ATTEST: yy lyf i Diana ordray, IMCA, Clerk-T/asurer Date: Z:IE BassWiy Documents'BPW-ResolutlonM2013'AcknoMedge PARKING MGT Agm1-Carmel Lofts Sophia S6], BPW 03-06-13-03.dOC%3/13/20132:56 PM